Lewis v. Ratliffe

4 Ky. Op. 269, 1871 Ky. LEXIS 191

• Court: Court of Appeals of Kentucky
• Decided: April 11, 1871
• Status: Published

Opinion

Opinion oe the Court by

Judge Hardin :

The petition in the first paragraph alleges in effect that the •defendant, Marion Lewis, wrongfully took the plaintiff’s mare, and in the second paragraph that the other defendants became liable afterwards by having the mare in their possession and converting her to their use, but no joint trespass of the three defendants is alleged or proved, although there is evidence conducing to show a liability on the part of John J. Lewis under the second paragraph, and that Marion Lewis was guilty of the trespass charged in the first. It seems to us, therefore, that the second instruction given, that “If the jury believe the evidence they will find for the plaintiff against Marion Lewis and John J. Lewis the value of the mare and such damages as the plaintiff may have sustained by the wrongful taking of the same,” was erroneous in making John J. Lewis liable for the damages sustained in consequence of the original trespass, as to which there was neither allegation nor proof against him.

The instruction asked by the defendants was properly refused.

Rut for the error indicated, the judgment is reversed and the cause remanded for a new trial and for further proceedings not inconsistent with this opinion.

Hazelrigg, for appellant. Cooper, for appellee.